When the Supreme Court decided Kiobel v. Royal Dutch Petroleum yesterday, one of our first tasks was to figure out what the decision meant for our cases. At this point, we’re pretty optimistic, even though the Court dismissed the case because the human rights abuses happened outside the US and there wasn’t enough of a connection to the United States.
ERI has several kinds of litigation in US courts, but we have three current transnational human rights and environmental lawsuits – cases where injuries happen outside the US, and we bring suit here. The cases illustrate a couple of ways in which transnational litigation will continue after Kiobel, despite the Supreme Court’s ruling that limits the ability to bring Alien Tort Statute (ATS) cases for injuries that arise in other countries.
In our cases against Union Carbide and Occidental Petroleum, which both involve environmental contamination in foreign countries, we are proceeding under ordinary claims for “toxic torts” – negligence, trespass, nuisance, that sort of thing. These cases were brought under the “transitory tort” doctrine, which allows lawsuits to be brought in US courts against defendants who are subject to US jurisdiction (including US companies), no matter where the injuries occurred. They are not ATS cases.
The Supreme Court discussed the transitory tort doctrine briefly in Kiobel, but didn’t suggest that there was any problem with this rule. The Court just said that the transitory tort rule didn’t allow ATS cases, because transitory tort cases typically involve applying claims arising under foreign law – unlike ATS cases where US courts would “enforce a norm of international law.”
So right now, we don’t have any reason to believe that transitory tort cases will not continue, even against foreign defendants.
Our other transnational case is Doe v. Chiquita, which is a human rights case about Chiquita’s financing of paramilitary death squads in Colombia. While that case does involve ATS claims, we feel pretty confident that it will continue as well, for two reasons.
First, unlike the Kiobel case, our case against Chiquita includes additional claims other than the ATS claims – ordinary transitory tort claims under state law and Colombian law. These should go ahead regardless of what happens with the ATS claims.
Second, because Chiquita is a US company, and because we know that Chiquita’s board of directors in the US approved payments to the paramilitaries, we think there’s enough of a connection to the US to allow the ATS claims to go forward. The Supreme Court’s majority opinion didn’t say how much activity in the US was necessary in order to allow an ATS case, but the Court’s two most conservative members, Justices Alito and Thomas, wrote a concurrence saying that they thought a case should only proceed if the activity in the US violated international law. The majority didn’t adopt that standard – all they said was that “mere corporate presence” was not enough – so we don’t know exactly where the line is. But even under Alito and Thomas’s highly restrictive test, we should still be able to proceed against Chiquita, because the decision to fund the paramilitaries violated international law.
What about our past cases? It’s hard to say. Our cases against Unocal and Chevron both involved US companies, and in both cases there was at least some conduct in the US. Our Wiwa v. Shell case, however, was very similar to the Kiobel case – in fact, we represented other members of the Kiobel family – so we probably wouldn’t have been able to bring ATS claims in that case.
But even in Wiwa v. Shell, we also brought claims under state law and Nigerian law in addition to ATS claims. That case settled just before trial. Even under the Kiobel decision, we still would have been proceeding to trial when the case settled.
The bottom line? We’re still in business seeking justice and accountability for corporate human rights and environmental abuses. But in some cases we have fewer tools than we did before.